Argument analysis: Imagery overwhelms the facts
on Apr 22, 2015 at 1:49 pm
The Supreme Court left the bench Wednesday morning emotionally drawn toward ending an old New Deal program of propping up farm prices, but unsure about how to contain the result so as not to scuttle more than that one scheme. Imagery, of an overbearing federal government, far outran a keen appreciation of the actual facts on how that one program actually works, so the constitutional contest seemed entirely unequal.
At one point during the oral argument in Horne v. Department of Agriculture, Justice Antonin Scalia compared the New Deal era’s “central planning” to what Russia’s communist regime “tried for a long time.” That was more extreme than other comments, but it only made the prevailing sentiment more vivid. Chief Justice John G. Roberts, Jr., conjured up a scene of a government truck coming in “the dark of night” to scoop up a farmer’s produce and haul it off — something that never happens under the program at issue.
What clearly was happening in this argument was that a California raisin-growing family had, through its lawyers, set the Court to thinking that the program that had been running since 1949 with the industry going along all the way was not a delicately balanced marketing regime, but a grab for property with nothing coming back to the farmers.
Although the lawyer for the Horne family, law professor and former judge Michael W. McConnell, assailed the program mainly in calm constitutional language, most of the Court’s members seemed to have formed on their own visceral discomfort with it. Deputy U.S. Solicitor General Edwin S. Kneedler tried repeatedly to emphasize the actual workings of the program, but there was no receptive audience for that.
The Chief Justice sought assurances that the raisin program was nearly unique among federal farm crop marketing regimes, but Kneedler would not concede that, saying that there were eight or ten others that operated quite similarly, and perhaps “scores of others” that might be affected. Justice Elena Kagan suggested that the program might actually be a “ridiculous” one, and was “a weird historical anomaly” — but Kneedler would not accept that as true.
Some members of the Court went so far as to liken this program to one in which the government simply ordered cellphone manufacturers to hand over to the government every fifth phone they made, or maybe automakers to give up every fifth car that they made.
Justice Anthony M. Kennedy, who seldom uses sarcasm to make his points during oral arguments, loosed a couple of mock claims by the government that betrayed a harsh indifference to the consequences of its raisin program. Even if the program amounted to an unconstitutional seizure of property, he said, that would be okay, “everything will work out,” he said as if the government were saying it.
It seemed obvious that, if the Court could fashion an analytical box that enclosed only this one Agriculture Department regime, it would have no trouble sparing the Horne family from paying a sizable financial penalty and maybe making them eligible for some added compensation on top. In the process, a price-stabilizing regime for dried grapes would apparently be stopped in its tracks, with annual crops taking their chances from here on with regular market forces.
Justice Stephen G. Breyer was the only member of the Court obviously ready to defend the scheme, suggesting that, as the program was set up and had usually worked, everybody benefited. Kids in school lunch programs got raisins for free, prices were kept up to the farmers’ benefit, “everyone’s better off,” he said. “What’s wrong with that?”
It was difficult throughout the argument to get at just what conceptually was going on. Did the Court’s members really think this one program had become one of unfeeling bureaucratic excess, and that made it impossible for the Justices to allow themselves to get familiar with its actual functioning? Or did they understand the details perfectly, and found them to be only reinforcements of the idea that Big Government was simply taking advantage of Little People?
It was rather unconvincing then, near the middle of the government lawyer’s argument, when Chief Justice Roberts vowed that “[w]e are not going to jeopardize the Agriculture Department’s marketing programs.” That, apparently, will be the core challenge as the Court writes its decision.